Com. v. Taglieri

• Decision Date: 04 June 1979
• Citation: 378 Mass. 196,390 N.E.2d 727
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Henry L. TAGLIERI.

Page 727

390 N.E.2d 727

378 Mass. 196

COMMONWEALTH v. Henry L. TAGLIERI.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1979.

Decided June 4, 1979.

Bernard Manning, Asst. Atty. Gen., for the Com.

Margaret Hayman, Boston, for defendant.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

WILKINS, Justice.

We granted further appellate review in this case to consider whether there was sufficient information contained in an affidavit in support of a search warrant to constitute probable cause. The Appeals Court held that there was not. Commonwealth v. Taglieri, --- Mass.App. ---- ^A, 381 N.E.2d 1118 (1978). We agree.

We summarize the affidavit. A State police officer, who had experience in gathering information concerning gambling and organized crime, by affidavit presented certain facts on personal knowledge. In May, 1974, pursuant to court order, an electronic interceptor of telephone calls had been authorized concerning two telephones at an address in East Boston. In late May and in the first part of June, 1974, State police officers intercepted and recorded various telephone conversations made to and from the telephones at the East Boston address. The substance of these conversations showed that several individuals were using these telephones to conduct an illegal gambling operation. The police officer was able to identify who these individuals were. Each had been convicted of gambling violations.

Two telephone calls were made from the East Boston address to a telephone listed to the defendant and installed at the Revere premises for which the search warrant was sought. On May 29, 1974, at approximately 3:25 P.M., one of the identified individuals called the Revere telephone number and spoke to a man he called "Butch." During this telephone call, "Butch" placed two bets with the caller from East Boston. More than two weeks later, at approximately 1:51 P.M. on June 13, 1974, the same individual called the Revere number from the East Boston address, spoke to a man named "Henry," and told "Henry" the results of the first race at Suffolk Downs race track. Based on this information and his personal knowledge, the police officer represented that there was probable cause to believe that certain gaming materials and devices could be found in the Revere house. A judge of the Superior Court issued a warrant to search the Revere premises.

On August 1, 1974, the police entered and searched the Revere premises. They seized various items, including papers with notations indicating number pool play and horse bets. The defendant was charged with the use of a telephone for the purpose of accepting or placing wagers and with being present in a place with betting apparatus. The defendant was convicted in a District Court and appealed to the Superior Court. He filed a motion to suppress the evidence, which was denied. He was then convicted in a jury-waived trial in the Superior Court and given concurrent sentences to a house of correction. A Justice of the Appeals Court granted a stay of execution pending appeal.

The Commonwealth argues that the judge issuing the search warrant could use his experience to determine the significance of the facts set forth in the affidavit. We have recently acknowledged that a judge or magistrate may apply common knowledge and may draw reasonable inferences from the facts before him. See Commonwealth v. Alessio, --- Mass. ----, ---- ^B,384 N.E.2d 638 (1979). See also G.L. c. 271, § 27. This is consistent with the view that "affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). We would not, however, accept an argument that the peculiar experience and knowledge of an issuing judge or magistrate would support the issuance of a warrant. The result should not turn on who the magistrate is or how much special knowledge he may have. We would accept only inferences which an experienced magistrate could draw as a commonsense conclusion from the information set forth in the affidavit. See 1 W.R. LaFave, Search and Seizure 463 (1978). Although some courts have sometimes spoken broadly of the deference to be accorded the expertise of an issuing magistrate, a close examination of the cases reveals no willingness to defer to inferences which do not follow as a matter of common sense from the affidavit. See, e. g., United States v. Berry, 150 U.S.App.D.C. 187, 463 F.2d 1278, 1285 (1972). Although weight should be given to the judgment and experience of a judge or magistrate who issued a warrant, with the result that its issuance will be upheld if there was a reasonable basis for finding probable cause (Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir. 1966)), the affidavit "must set forth the basis for the magistrate's inferences with enough precision" for the determination to be scrutinized at a subsequent hearing on a motion to suppress or on appeal from a decision on a motion to suppress (Id. at 317).

We agree with the Commonwealth that weight must be given to the special experience of a law enforcement officer who has executed an affidavit. For example, where such an officer states that he has drawn inferences from facts which an inexperienced person might not draw from those facts, the magistrate may rely on those inferences. Consequently, if a seemingly minor fact has particular significance to an expert, not apparent from common knowledge and experience, because of the method by which criminal operations are conducted, the affidavit should disclose its significance....